EXHIBIT 10.1



 


EXECUTION
COPY 


 


COMMON
STOCK PURCHASE AGREEMENT


 


COMMON
STOCK PURCHASE AGREEMENT (the “Agreement”), dated as of December 18, 2015, by and between RITTER PHARMACEUTICALS,
INC., a Delaware corporation (the “Company”), and ASPIRE CAPITAL FUND, LLC, an Illinois limited
liability company (the “Buyer”). Capitalized terms used herein and not otherwise defined herein are defined
in Section 10 hereof.


 


WHEREAS:


 


Subject
to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Buyer, and the Buyer wishes to buy
from the Company, up to Ten Million Dollars ($10,000,000) of the Company’s common stock, par value $0.001 (the “Common
Stock”). The shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”


 


NOW
THEREFORE, the Company and the Buyer hereby agree as follows:


 


 1. PURCHASE OF COMMON STOCK. 




 


Subject
to the terms and conditions set forth in this Agreement, the Company has the right to sell to the Buyer, and the Buyer has the
obligation to purchase from the Company, Purchase Shares as follows:


 


(a) Initial
Purchase; Commencement of Purchases of Common Stock. Immediately upon the execution of this Agreement, the Buyer shall purchase
from the Company 500,000 Purchase Shares and upon receipt of such Purchase Shares pay to the Company as the purchase price therefor,
via wire transfer, One Million Dollars ($1,000,000) (such purchase the “Initial Purchase” and such Purchase
Shares are referred to herein as “Initial Purchase Shares”). Upon issuance and payment therefor as provided
herein, such Initial Purchase Shares shall be validly issued and fully paid and non-assessable. The Initial Purchase Shares shall
be issued to the Buyer bearing the restrictive legend set forth in Section 4(e). Thereafter, the purchase and sale of Purchase
Shares hereunder shall occur from time to time upon written notices by the Company to the Buyer on the terms and conditions as
set forth herein following the satisfaction of the conditions (the “Commencement”) as set forth in Sections
6 and 7 below (the date of satisfaction of such conditions, the “Commencement Date”).


 


 (b) The
Company’s Right to Require Regular Purchases. Subject to the terms and conditions of this Agreement, on any given Business
Day after the Commencement Date, the Company shall have the right but not the obligation to direct the Buyer by its delivery to
the Buyer of a Purchase Notice from time to time, and the Buyer thereupon shall have the obligation, to buy the number of Purchase
Shares specified in such notice, up to 100,000 Purchase Shares, on such Business Day (as long as such notice is delivered on or
before 5:00 p.m. Eastern time on such Business Day) (each such purchase, a “Regular Purchase”) at the Purchase
Price on the Purchase Date; however, in no event shall the Purchase Amount of a Regular Purchase exceed Five Hundred Thousand
Dollars ($500,000) per Business Day. The Company may deliver additional Purchase Notices to the Buyer from time to timeThe share
amounts in this Section 1(b) shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock
split, reverse stock split, or other similar transaction.


 




    	 



    	 	 	 



    

 


 (c) VWAP
Purchases. Subject to the terms and conditions of this Agreement, in addition to purchases of Purchase Shares as described
in Section 1(b) above, with one (1) Business Day’s prior written notice (as long as such notice is delivered on or before
5:00 p.m. Eastern time on the Business Day immediately preceding the VWAP Purchase Date), the Company shall also have the right
but not the obligation to direct the Buyer by the Company’s delivery to the Buyer of a VWAP Purchase Notice from time to
time, and the Buyer thereupon shall have the obligation, to buy the VWAP Purchase Share Percentage of the trading volume of the
Common Stock on the VWAP Purchase Date up to the VWAP Purchase Share Volume Maximum on the VWAP Purchase Date (each such purchase,
a “VWAP Purchase”) at the VWAP Purchase Price. The Company may deliver a VWAP Purchase Notice to the Buyer
on or before 5:00 p.m. Eastern time on a date on which the Company also submitted a Purchase Notice for a Regular Purchase of
at least 100,000 Purchase Shares to the Buyer. A VWAP Purchase shall automatically be deemed completed at such time on the VWAP
Purchase Date that the Sale Price falls below the VWAP Minimum Price Threshold; in such circumstance, the VWAP Purchase Amount
shall be calculated using (i) the VWAP Purchase Share Percentage of the aggregate shares traded on the Principal Market for such
portion of the VWAP Purchase Date prior to the time that the Sale Price fell below the VWAP Minimum Price Threshold and (ii) a
VWAP Purchase Price calculated using the volume weighted average price of Common Stock sold during such portion of the VWAP Purchase
Date prior to the time that the Sale Price fell below the VWAP Minimum Price Threshold. Each VWAP Purchase Notice must be accompanied
by instructions to the Company’s Transfer Agent to immediately issue to the Buyer an amount of Common Stock equal to the
VWAP Purchase Share Estimate, a good faith estimate by the Company of the number of Purchase Shares that the Buyer shall have
the obligation to buy pursuant to the VWAP Purchase Notice. In no event shall the Buyer, pursuant to any VWAP Purchase, purchase
a number of Purchase Shares that exceeds the VWAP Purchase Share Estimate issued on the VWAP Purchase Date in connection with
such VWAP Purchase Notice; however, the Buyer will immediately return to the Company any amount of Common Stock issued pursuant
to the VWAP Purchase Share Estimate that exceeds the number of Purchase Shares the Buyer actually purchases in connection with
such VWAP Purchase. Upon completion of each VWAP Purchase Date, the Buyer shall submit to the Company a confirmation of the VWAP
Purchase in form and substance reasonably acceptable to the Company. The Company may deliver additional VWAP Purchase Notices
to the Buyer from time to time so long as the most recent purchase has been completed. The Company may, by written notice to the
Buyer, in its sole discretion at any time after the date of this Agreement, irrevocably terminate this Section 1(c) and its right
to direct the Buyer to make VWAP Purchases.


 


(d) Payment
for Purchase Shares. For each Regular Purchase, the Buyer shall pay to the Company an amount equal to the Purchase Amount
as full payment for such Purchase Shares via wire transfer of immediately available funds on the same Business Day that the Buyer
receives such Purchase Shares. For each VWAP Purchase, the Buyer shall pay to the Company an amount equal to the VWAP Purchase
Amount as full payment for such Purchase Shares via wire transfer of immediately available funds on the third Business Day following
the VWAP Purchase Date. All payments made under this Agreement shall be made in lawful money of the United States of America via
wire transfer of immediately available funds to such account as the Company may from time to time designate by written notice
in accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the terms of this Agreement is
due on any day that is not a Business Day, the same shall instead be due on the next succeeding day that is a Business Day.


 


(e) Purchase
Price Floor. The Company and the Buyer shall not effect any sales under this Agreement on any Purchase Date where the Closing
Sale Price is less than the Floor Price. “Floor Price” means a closing sale price for the Common Stock of $0.50
per share of Common Stock, which dollar amount shall be appropriately adjusted for any reorganization, recapitalization, stock
dividend, stock split, reverse stock split or other similar transaction.


 




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(f) Records
of Purchases. The Buyer and the Company shall each maintain records showing the remaining Available Amount at any given time
and the dates and Purchase Amounts for each purchase, or shall use such other method reasonably satisfactory to the Buyer and
the Company to reconcile the remaining Available Amount.


 


(g) Taxes.
The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery
of any shares of Common Stock to the Buyer made under this Agreement.


 


(h) Compliance
with Principal Market Rules. Notwithstanding anything in this Agreement to the contrary, and in addition to the limitations
set forth in Section 1(e), the total number of shares of Common Stock that may be issued under this Agreement, including the Commitment
Shares (as defined in Section 4(e) hereof), shall be limited to 1,577,699 shares of Common Stock (the “Exchange Cap”),
which equals 19.99% of the Company’s outstanding shares of Common Stock as of the date hereof, unless stockholder approval
is obtained to issue more than such 19.99%. The Exchange Cap shall be appropriately adjusted for any stock dividend, stock split,
reverse stock split or similar transaction. The foregoing limitation shall not apply if stockholder approval has not been obtained
and at any time the Exchange Cap is reached and at all times thereafter the average price paid for all shares of Common Stock
issued under this Agreement is equal to or greater than $1.75 (the “Minimum Price”), a price equal to the Closing
Sale Price on the date hereof (in such circumstance, for purposes of the Principal Market, the transaction contemplated hereby
would not be “below market” and the Exchange Cap would not apply). Notwithstanding the foregoing, the Company
shall not be required or permitted to issue, and the Buyer shall not be required to purchase, any shares of Common Stock under
this Agreement if such issuance would violate the rules or regulations of the Principal Market.


 


(i) Beneficial
Ownership Limitation. The Company shall not issue and the Buyer shall not purchase any shares of Common Stock under this Agreement
if such shares proposed to be issued and sold, when aggregated with all other shares of Common Stock then owned beneficially (as
calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Buyer and its affiliates
would result in the beneficial ownership by the Buyer and its affiliates of more than 19.99% of the then issued and outstanding
shares of Common Stock.


 


2. BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


The
Buyer represents and warrants to the Company that as of the date hereof and as of the Commencement Date:


 


(a) Investment
Purpose. The Buyer is entering into this Agreement and acquiring the Commitment Shares (as defined in Section 4(e) hereof)
and the Purchase Shares (the Purchase Shares and the Commitment Shares are collectively referred to herein as the “Securities”),
for its own account for investment only and not with a view towards, or for resale in connection with, the public sale or distribution
thereof; provided however, by making the representations herein, the Buyer does not agree to hold any of the Securities for any
minimum or other specific term.


 




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(b) Accredited
Investor Status. The Buyer is an “accredited investor” as that term is defined in Rule 501(a)(3) of Regulation
D of the 1933 Act.


 


(c) Reliance
on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility
of the Buyer to acquire the Securities.


 


(d) Information.
The Buyer has been furnished with all materials relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities that have been reasonably requested by the Buyer, including, without limitation,
the SEC Documents (as defined in Section 3(f) hereof). The Buyer understands that its investment in the Securities involves a
high degree of risk. The Buyer (i) is able to bear the economic risk of an investment in the Securities including a total loss,
(ii) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks
of the proposed investment in the Securities and (iii) has had an opportunity to ask questions of and receive answers from the
officers of the Company concerning the financial condition and business of the Company and other matters related to an investment
in the Securities. Neither such inquiries nor any other due diligence investigations conducted by the Buyer or its representatives
shall modify, amend or affect the Buyer’s right to rely on the Company’s representations and warranties contained
in Section 3 below. The Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Securities.


 


(e) No
Governmental Review. The Buyer understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.


 


(f) Transfer
or Sale. The Buyer understands that except as provided in the Registration Rights Agreement (as defined in Section 4(a) hereof):
(i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may not be
offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder or (B) an exemption exists permitting
such Securities to be sold, assigned or transferred without such registration; (ii) any sale of the Securities made in reliance
on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of
the Securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and
regulations of the SEC thereunder; and (iii) neither the Company nor any other person is under any obligation to register the
Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.


 


(g) Organization.
The Buyer is a limited liability company duly organized and validly existing in good standing under the laws of the jurisdiction
in which it is organized, and has the requisite organizational power and authority to own its properties and to carry on its business
as now being conducted.


 




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(h) Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Buyer and is a valid
and binding agreement of the Buyer enforceable against the Buyer in accordance with its terms, subject as to enforceability to
(i) general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and (ii) public policy
underlying any law, rule or regulation (including any federal or state securities law, rule or regulation) with regards to indemnification,
contribution or exculpation. The execution and delivery of the Transaction Documents by the Buyer and the consummation by it of
the transactions contemplated hereby and thereby do not conflict with the Buyer’s certificate of organization or operating
agreement or similar documents, and do not require further consent or authorization by the Buyer, its managers or its members.


 


(i) Residency.
The Buyer is of the State of Illinois.


 


(j) No
Prior Short Selling. The Buyer represents and warrants to the Company that at no time prior to the date of this Agreement
has any of the Buyer, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or
indirectly, any (i) “short sale” (as such term is defined in Section 242.200 of Regulation SHO of the Securities Exchange
Act of 1934, as amended (the “1934 Act”)) of the Common Stock or (ii) hedging transaction, which establishes
a net short position with respect to the Common Stock.


 


3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The
Company represents and warrants to the Buyer that as of the date hereof and as of the Commencement Date:


 


(a) Organization
and Qualification. The Company and its “Subsidiaries” (which for purposes of this Agreement means any entity in
which the Company, directly or indirectly, owns more than 50% of the voting stock or capital stock or other similar equity interests)
are corporations or limited liability companies duly organized and validly existing in good standing under the laws of the jurisdiction
in which they are incorporated or organized, and have the requisite corporate or organizational power and authority to own their
properties and to carry on their business as now being conducted. Each of the Company and its Subsidiaries is duly qualified as
a foreign corporation or limited liability company to do business and is in good standing in every jurisdiction in which its ownership
of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure
to be so qualified or be in good standing could not reasonably be expected to have a Material Adverse Effect. As used in this
Agreement, “Material Adverse Effect” means any material adverse effect on any of: (i) the business, properties,
assets, operations, results of operations or financial condition of the Company and its Subsidiaries, if any, taken as a whole,
or (ii) the authority or ability of the Company to perform its obligations under the Transaction Documents (as defined in Section
3(b) hereof). The Company has no material Subsidiaries except as set forth on Schedule 3(a).


 


(b) Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement, the Registration Rights Agreement and each of the other agreements entered into by the parties on the Commencement
Date and attached hereto as exhibits to this Agreement (collectively, the “Transaction Documents”), and to
issue the Securities in accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents
by the Company and the consummation by it of the transactions contemplated hereby and thereby, including without limitation, the
issuance of the Commitment Shares and the reservation for issuance and the issuance of the Purchase Shares issuable under this
Agreement, have been duly authorized by the Company’s Board of Directors or duly authorized committee thereof, do not conflict
with the Company’s Certificate of Incorporation or Bylaws, and do not require further consent or authorization by the Company,
its Board of Directors or its stockholders (other than as contemplated by Section 1(h) hereof), (iii) this Agreement has been,
and each other Transaction Document shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this
Agreement constitutes, and each other Transaction Document upon its execution on behalf of the Company, shall constitute, the
valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such enforceability
may be limited by (y) general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies and (z) public policy
underlying any law, rule or regulation (including any federal or states securities law, rule or regulation) with regards to indemnification,
contribution or exculpation. The Board of Directors of the Company or duly authorized committee thereof has approved the resolutions
(the “Signing Resolutions”) substantially in the form as set forth as Exhibit B-1 attached hereto to
authorize this Agreement and the transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect
and have not been modified or supplemented in any material respect other than by the resolutions set forth in Exhibit B-2
attached hereto regarding the registration statement referred to in Section 4 hereof. The Company has delivered to the Buyer a
true and correct copy of the Signing Resolutions as approved by the Board of Directors of the Company or an appropriate Board
committee.


 




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(c) Capitalization.
As of the date hereof, the authorized capital stock of the Company consists of (i) 25,000,000 shares of Common Stock, par value
$0.001, of which as of the date hereof, 7,892,441 shares are issued and outstanding, zero shares are held as treasury shares,
2,111,682 shares are reserved for future issuance pursuant to the Company’s equity incentive plans, of which approximately
206,448 shares remain available for future option grants or stock awards, and 418,321 shares are issuable and reserved for issuance
pursuant to securities (other than stock options or equity based awards issued pursuant to the Company’s stock incentive
plans) exercisable or exchangeable for, or convertible into, shares of Common Stock, and (ii) 5,000,000 shares of preferred stock,
none of which have been designated or are issued or outstanding. All of such outstanding shares have been, or upon issuance will
be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule 3(c), (i) no shares of the Company’s
capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted
by the Company, (ii) there are no outstanding debt securities of the Company or any of its Subsidiaries, (iii) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares
of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company
or any of its Subsidiaries, (iv) there are no material agreements or arrangements under which the Company or any of its Subsidiaries
is obligated to register the sale of any of their securities under the 1933 Act (except the Registration Rights Agreement), (v)
there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments
containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement
and (vii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement. The Company has furnished or made available to the Buyer true and correct copies of the Company’s Amended
and Restated Certificate of Incorporation, as in effect on the date hereof (the “Certificate of Incorporation”),
and the Company’s Amended and Restated Bylaws, as in effect on the date hereof (the “Bylaws”).


 




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(d) Issuance
of Securities. The Commitment Shares and the Initial Purchase Shares have been duly authorized and, upon issuance in accordance
with the terms hereof, the Commitment Shares and the Initial Purchase Shares shall be (i) validly issued, fully paid and non-assessable
and (ii) free from all taxes, liens and charges with respect to the issuance thereof. At least an additional 888,835 shares of
Common Stock have been duly authorized and reserved for issuance upon future purchase as Purchase Shares under this Agreement.
Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, such additional Purchase Shares
shall be validly issued, fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof,
with the holders being entitled to all rights accorded to a holder of Common Stock.


 


(e) No
Conflicts. Except as disclosed in Schedule 3(e), the execution, delivery and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation,
the reservation for issuance and issuance of the Purchase Shares) will not (i) result in a violation of the Certificate of Incorporation,
including any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company,
or the Bylaws or (ii) constitute a default (or an event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which the Company or any of its Subsidiaries is a party, or result, to the Company’s knowledge, in a violation of any
law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and
regulations of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any property or asset of
the Company or any of its Subsidiaries is bound or affected, except in the case of defaults, terminations, amendments, accelerations,
cancellations and violations under clause (ii), which could not reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in Schedule 3(e), neither the Company nor its Subsidiaries is in violation of any term of or in default under
its Certificate of Incorporation, including any Certificate of Designation, Preferences and Rights of any outstanding series of
preferred stock of the Company, or Bylaws or their organizational charter or bylaws, respectively. Except as disclosed in Schedule
3(e), neither the Company nor any of its Subsidiaries is in violation of any term of or is in default under any material contract,
agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable
to the Company or its Subsidiaries, except for possible violations, defaults, terminations or amendments that could not reasonably
be expected to have a Material Adverse Effect. The business of the Company and its Subsidiaries is not being conducted, and shall
not be conducted, in violation of any law, ordinance, or regulation of any governmental entity, except for possible violations,
the sanctions for which either individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.
Except as specifically contemplated by this Agreement, reporting obligations under the 1934 Act or as required under the 1933
Act or applicable state securities laws or the filing of a Listing of Additional Shares Notification Form with the Principal Market,
the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court
or governmental agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations
under or contemplated by the Transaction Documents in accordance with the terms hereof or thereof. Except for reporting obligations
under the 1934 Act, all consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant
to the preceding sentence shall be obtained or effected on or prior to the Commencement Date. The Company is not subject to any
notices or actions from or to the Principal Market, other than routine matters incident to listing on the Principal Market and
not involving a violation of the rules of the Principal Market. To the Company’s knowledge, the Principal Market has not
commenced any delisting proceedings against the Company.


 




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(f) SEC
Documents; Financial Statements. Except as disclosed in Schedule 3(f), since June 30, 2015, the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements
of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements
and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”).
As of their respective dates (except as they have been correctly amended), the SEC Documents complied in all material respects
with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC (except as they may have been properly amended), contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective
dates (except as they have been properly amended), the financial statements of the Company included in the SEC Documents complied
as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC
with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as disclosed in Schedule 3(f) or routine correspondence, such as comment letters and
notices of effectiveness in connection with previously filed registration statements or periodic reports publicly available on
EDGAR, to the Company’s knowledge, the Company or any of its Subsidiaries are not presently the subject of any inquiry,
investigation or action by the SEC.


 


(g) Absence
of Certain Changes. Except as disclosed in Schedule 3(g), since September 30, 2015, there has been no material adverse change
in the business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries taken
as a whole. For purposes of this Agreement, neither a decrease in cash or cash equivalents nor losses incurred in the ordinary
course of the Company’s business shall be deemed or considered a material adverse change. The Company has not taken any
steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company
or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy
or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.


 


(h) Absence
of Litigation. Except as disclosed in Schedule 3(h), to the Company’s knowledge, there is no action, suit, proceeding,
inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company or any of its Subsidiaries, threatened against the Company or any of the Company’s Subsidiaries
or any of the Company’s or the Company’s Subsidiaries’ officers or directors in their capacities as such, which
could reasonably be expected to have a Material Adverse Effect (each, an “Action”). A description of each such
Action, if any, is set forth in Schedule 3(h).


 




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(i) Acknowledgment
Regarding Buyer’s Status. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further
acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with
respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given by the Buyer or
any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and
thereby is merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the Buyer that
the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the
Company and its representatives and advisors.


 


(j) Intellectual
Property Rights. To the Company’s knowledge, the Company and its Subsidiaries own or possess adequate rights or licenses
to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights
(collectively, “Intellectual Property”) necessary to conduct their respective businesses as now conducted,
except as set forth in Schedule 3(j) or to the extent that the failure to own, possess, license or otherwise hold adequate rights
to use Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed
in Schedule 3(j), to the Company’s knowledge, none of the Company’s active and registered Intellectual Property will
expire or terminate by the terms and conditions thereof within two years from the date of this Agreement which could reasonably
be expected to have a Material Adverse Effect. The Company and its Subsidiaries do not have any knowledge of any infringement
by the Company or its Subsidiaries of any Intellectual Property of others and, except as set forth on Schedule 3(j), there is
no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against, the
Company or its Subsidiaries regarding Intellectual Property, which could reasonably be expected to have a Material Adverse Effect.


 


(k) Environmental
Laws. To the Company’s knowledge, the Company and its Subsidiaries (i) are in material compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of the environment or human health and safety
and with respect to hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
have received all material permits, licenses or other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in material compliance with all terms and conditions of any such permit, license or
approval, except where, in each of the three foregoing clauses, the failure to so comply or receive such approvals could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(l) Title.
The Company and its Subsidiaries have good and marketable title to all personal property owned by them that is material to the
business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as
are described in Schedule 3(l) or such as do not materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and any of its Subsidiaries or could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Any real property and facilities held under lease by the Company
and any of its Subsidiaries, to the Company’s knowledge, are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings
by the Company and its Subsidiaries.


 




    	 	 -9-	 



    	 



    

 


(m) Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as management of the Company believes to be reasonable and customary in the businesses in which the
Company and its Subsidiaries are engaged. To the Company’s knowledge, since September 30, 2012, neither the Company nor
any such Subsidiary has been refused any insurance coverage sought or applied for and neither the Company nor any such Subsidiary,
to the Company’s knowledge, will be unable to renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably
be expected to have a Material Adverse Effect.


 


(n) Regulatory
Permits. The Company and its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective businesses as currently conducted, except when the
failure to so possess such certificates, authorizations or permits could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any written notice of proceedings
relating to the revocation or modification of any such material certificate, authorization or permit.


 


(o) Tax
Status. The Company and each of its Subsidiaries has made or filed all federal and state income and all other material tax
returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the
Company and each of its Subsidiaries has set aside on its books reserves reasonably adequate for the payment of all unpaid and
unreported taxes or filed valid extensions) and has paid all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith
and has set aside on its books reserves reasonably adequate for the payment of all taxes for periods subsequent to the periods
to which such returns, reports or declarations apply. To the Company’s knowledge, there are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction.


 


(p) Transactions
With Affiliates. Except as set forth on Schedule 3(p), and other than the grant or exercise of stock options or any other
equity securities offered pursuant to duly adopted stock or incentive compensation plans as disclosed on Schedule 3(c), as of
the date hereof, none of the officers, directors or employees of the Company is presently a party to any transaction with the
Company or any of its Subsidiaries (other than for services as employees, officers and directors and reimbursement for expenses
incurred on behalf of the Company), including any contract, agreement or other arrangement providing for the furnishing of services
to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a material interest or is an officer, director, trustee or general partner.


 




    	 	 -10-	 



    	 



    

 


(q) Application
of Takeover Protections. The Company and its board of directors have taken or will take prior to the Commencement Date all
necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or
the laws of the state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated
by this Agreement, including, without limitation, the Company’s issuance of the Securities and the Buyer’s ownership
of the Securities.


 


4. COVENANTS.


 


(a) Filing
of Form 8-K and Registration Statement. The Company agrees that it shall, within the time required under the 1934 Act, file
a Current Report on Form 8-K disclosing this Agreement and the transaction contemplated hereby. The Company shall also file within
ten (10) Business Days from the date hereof a new registration statement covering the sale of the Securities by the Buyer in accordance
with the terms of the Registration Rights Agreement between the Company and the Buyer, dated as of the date hereof (“Registration
Rights Agreement”).


 


(b) Blue
Sky. The Company shall take such action, if any, as is reasonably necessary in order to obtain an exemption for or to qualify
(i) the initial issuance of the Securities to the Buyer under this Agreement and (ii) any subsequent sale of the Securities by
the Buyer, in each case, under applicable securities or “Blue Sky” laws of the states of the United States in such
states as is reasonably requested by the Buyer from time to time, and shall provide evidence of any such action so taken to the
Buyer at its written request.


 


(c) Listing.
The Company shall promptly secure the listing of all of the Securities upon each national securities exchange and automated quotation
system that requires an application by the Company for listing, if any, upon which shares of Common Stock are then listed (subject
to official notice of issuance) and shall maintain such listing, so long as any other shares of Common Stock shall be so listed.
The Company shall use its reasonable best efforts to maintain the Common Stock’s listing on the Principal Market in accordance
with the requirements of the Registration Rights Agreement. Neither the Company nor any of its Subsidiaries shall take any action
that would be reasonably expected to result in the delisting or suspension of the Common Stock on the Principal Market, unless
the Common Stock is immediately thereafter traded on the New York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market,
the Nasdaq Global Market, the Nasdaq Capital Market, the OTC Bulletin Board, or the OTCQB or OTCQX market places of the OTC Markets.
The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section.


 


(d) Limitation
on Short Sales and Hedging Transactions. The Buyer agrees that beginning on the date of this Agreement and ending on the date
of termination of this Agreement as provided in Section 11(k), the Buyer and its agents, representatives and affiliates shall
not in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined
in Section 242.200 of Regulation SHO of the 1934 Act) of the Common Stock or (ii) hedging transaction, which establishes a net
short position with respect to the Common Stock.


 


(e) Issuance
of Commitment Shares and Initial Purchase Shares. Immediately upon the execution of this Agreement, the Company shall issue
to the Buyer as consideration for the Buyer entering into this Agreement 188,864 shares of Common Stock (the “Commitment
Shares”) and, pursuant to Section 1(a), the Buyer shall purchase the Initial Purchase Shares. The Commitment Shares
and Initial Purchase Shares shall be issued in certificated form and (subject to Section 5 hereof) shall bear a restrictive legend
substantially similar to the following:


 




    	 	 -11-	 



    	 



    

 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2)
AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS.


 


(f) Due
Diligence. The Buyer shall have the right, from time to time as the Buyer may reasonably deem appropriate, to perform reasonable
due diligence on the Company during normal business hours and subject to reasonable prior notice to the Company. The Company and
its officers and employees shall provide information and reasonably cooperate with the Buyer in connection with any reasonable
request by the Buyer related to the Buyer’s due diligence of the Company, including, but not limited to, any such request
made by the Buyer in connection with (i) the filing of the registration statement described in Section 4(a) hereof and (ii) the
Commencement; provided, however, that at no time is the Company required or permitted to disclose material nonpublic information
to the Buyer or breach any obligation of confidentiality or non-disclosure to a third party or make any disclosure that could
cause a waiver of attorney-client privilege. Except as may be required by law, court order or governmental authority, each party
hereto agrees not to disclose any Confidential Information of the other party to any third party and shall not use the Confidential
Information of such other party for any purpose other than in connection with, or in furtherance of, the transactions contemplated
hereby. Each party hereto acknowledges that the Confidential Information shall remain the property of the disclosing party and
agrees that it shall take all reasonable measures to protect the secrecy of any Confidential Information disclosed by the other
party.


 


(g) Disposition
of Securities. The Buyer shall not sell any Securities except as provided in this Agreement, the Registration Rights Agreement.
The Buyer shall not transfer any Securities except pursuant to sales described in the “Plan of Distribution” section
of the prospectus included in the Registration Statement or pursuant to Rule 144 under the 1933 Act. In the event of any sales
of Securities pursuant to the Registration Statement, the Buyer will (i) effect such sales pursuant to the “Plan of Distribution”
section of the prospectus included in the Registration Statement, and (ii) will comply with all applicable prospectus delivery
requirements.


 


5. TRANSFER
AGENT INSTRUCTIONS.


 


Immediately
upon the execution of this Agreement, the Company shall deliver to the Transfer Agent a letter in the form as set forth as Exhibit
D attached hereto with respect to the issuance of the Initial Purchase Shares and the Commitment Shares. On the Commencement
Date, the Company shall cause any restrictive legend on the Initial Purchase Shares and the Commitment Shares to be removed upon
surrender of the originally issued certificate(s) for such shares. So long as the Buyer complies with its obligations in Section
4(g), all of the additional Purchase Shares to be issued under this Agreement shall be issued without any restrictive legend unless
the Buyer expressly consents otherwise. The Company shall issue irrevocable instructions to the Transfer Agent, and any subsequent
transfer agent, to issue Common Stock in the name of the Buyer for the Purchase Shares (the “Irrevocable Transfer Agent
Instructions”). The Company warrants to the Buyer that, so long as the Buyer complies with its obligations in Section
4(g), no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5, will be given by the
Company to the Transfer Agent with respect to the Purchase Shares and that the Commitment Shares and the Purchase Shares
shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement
and the Registration Rights Agreement, subject to the provisions of Section 4(e) in the case of the Commitment Shares and the
Initial Purchase Shares.


 






    	 	 -12-	 



    	 



    

 





		6.	CONDITIONS
                                         TO THE COMPANY’S RIGHT TO COMMENCE



			SALES
                                         OF SHARES OF COMMON STOCK UNDER THIS AGREEMENT.



 


The
right of the Company hereunder to commence sales of the Purchase Shares (other than the Initial Purchase Shares) is subject to
the satisfaction of each of the following conditions on or before the Commencement Date (the date that the Company may begin sales
of Purchase Shares (other than the Initial Purchase Shares)):


 


	 	(a)	The
    Buyer shall have executed each of the Transaction Documents and delivered the same to the Company;
	 	 	 
	 	(b)	The
    representations and warranties of the Buyer shall be true and correct as of the Commencement Date as though made at that time
    (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material
    respects as of such specific date) and the Buyer shall have performed, satisfied and complied in all material respects with
    the covenants and agreements required by this Agreement to be performed, satisfied or complied with by the Buyer at or prior
    to the Commencement Date; and
	 	 	 
	 	(c)	A
    registration statement covering the sale of the Securities by the Buyer shall have been declared effective under the 1933
    Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. 


 


	 	7.	CONDITIONS TO THE BUYER’S OBLIGATION TO MAKE PURCHASES OF SHARES OF COMMON STOCK.




 


The
obligation of the Buyer to buy Purchase Shares (other than the Initial Purchase Shares) under this Agreement is subject to the
satisfaction of each of the following conditions on or before the Commencement Date (the date that the Company may begin sales
of Purchase Shares (other than the Initial Purchase Shares)) and once such conditions have been initially satisfied, there shall
not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:


 


(a) The
Company shall have executed each of the Transaction Documents and delivered the same to the Buyer;


 




    	 	 -13-	 



    	 



    

 


(b) The
Company shall have issued to the Buyer the Commitment Shares and, in the event that the Buyer shall have surrendered the originally
issued certificate(s), shall have removed the restrictive transfer legend from the certificate representing the Commitment Shares;


 


(c) The
Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within
the last 365 days suspended by the SEC or the Principal Market, other than a general halt in trading in the Common Stock by the
Principal Market under halt codes indicating pending or released material news, and the Securities shall be approved for listing
upon the Principal Market;


 


(d) The
Buyer shall have received the opinion of the Company’s legal counsel dated as of the Commencement Date in customary form
and substance;


 


(e) The
representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any
of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations
and warranties shall be true and correct without further qualification) as of the date of this Agreement and as of the Commencement
Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true
and correct in all material respects as of such specific date) and the Company shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied
or complied with by the Company at or prior to the Commencement Date. The Buyer shall have received a certificate, executed by
the Chief Executive Officer, the President or the Vice President Finance of the Company, dated as of the Commencement Date, to
the foregoing effect in the form attached hereto as Exhibit A;


 


(f) The
Board of Directors of the Company or a duly authorized committee thereof shall have adopted resolutions substantially in the form
attached hereto as Exhibit B-1, which shall be in full force and effect without any amendment or supplement thereto as
of the Commencement Date;


 


(g) As
of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose
of effecting future purchases of Purchase Shares hereunder, 1,577,699 shares of Common Stock;


 


(h) The
Irrevocable Transfer Agent Instructions, in form acceptable to the Buyer shall have been signed by the Company and the Buyer and
have been delivered to the Transfer Agent;


 


(i) The
Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State
of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) Business Days of the Commencement
Date;


 


(j) [Intentionally
Omitted.]


 


(k) The
Company shall have delivered to the Buyer a secretary’s certificate executed by the Secretary of the Company, dated as of
the Commencement Date, in the form attached hereto as Exhibit C;


 




    	 	 -14-	 



    	 



    

 


(l) A
registration statement covering the sale of (i) all of the Commitment Shares and the Initial Purchase Shares and (ii) such number
of additional Purchase Shares as reasonably determined by the Company shall have been declared effective under the 1933 Act by
the SEC and no stop order with respect thereto shall be pending or threatened by the SEC. The Company shall have prepared and
delivered to the Buyer a final and complete form of prospectus, dated and current as of the Commencement Date, to be used by the
Buyer in connection with any sales of any Securities, and to be filed by the Company one (1) Business Day after the Commencement
Date pursuant to Rule 424(b). The Company shall have made all filings under all applicable federal and state securities laws necessary
to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such
laws;


 


(m) No
Event of Default has occurred and is continuing, or any event which, after notice and/or lapse of time, would become an Event
of Default has occurred;


 


(n) On
or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested
by the Buyer, in order to render inapplicable any control share acquisition, business combination, stockholder rights plan or
poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate
of Incorporation or the laws of the state of its incorporation, other than Section 203 of the Delaware General Corporation Law,
that is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement, including, without
limitation, the Company’s issuance of the Securities and the Buyer’s ownership of the Securities; and


 


(o) The
Company shall have provided the Buyer with the information reasonably requested by the Buyer in connection with its due diligence
requests made prior to, or in connection with, the Commencement, in accordance with the terms of Section 4(f) hereof.


 


 8. INDEMNIFICATION. 




 


In
consideration of the Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities hereunder
and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless the Buyer and all of its affiliates, members, officers, directors, and employees, and any of the foregoing
person’s agents or other representatives (including, without limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective
of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable
attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result
of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company
in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of
any covenant, agreement or obligation of the Company contained in the Transaction Documents or any other certificate, instrument
or document contemplated hereby or thereby, or (c) any cause of action, suit or claim brought or made against such Indemnitee
and arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, other than with respect to Indemnified Liabilities which directly
and primarily result from (A) a breach of any of the Buyer’s representations and warranties, covenants or agreements contained
in this Agreement, or (B) the gross negligence, bad faith or willful misconduct of the Buyer or any other Indemnitee. To the extent
that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution
to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.


 




    	 	 -15-	 



    	 



    

 


9. EVENTS
OF DEFAULT. 


 


An
“Event of Default” shall be deemed to have occurred at any time as any of the following events occurs:


 


(a) while
any registration statement is required to be maintained effective pursuant to the terms of the Registration Rights Agreement,
the effectiveness of such registration statement lapses for any reason (including, without limitation, the issuance of a stop
order) or is unavailable to the Buyer for the sale of all of the Registrable Securities (as defined in the Registration Rights
Agreement), and such lapse or unavailability continues for a period of ten (10) consecutive Business Days or for more than an
aggregate of thirty (30) Business Days in any 365-day period, which is not in connection with a post-effective amendment to any
such registration statement or the filing of a new registration statement; provided, however, that in connection with any post-effective
amendment to such registration statement or filing of a new registration statement that is required to be declared effective by
the SEC, such lapse or unavailability may continue for a period of no more than thirty (30) consecutive Business Days, which such
period shall be extended for up to an additional thirty (30) Business Days if the Company receives a comment letter from the SEC
in connection therewith;


 


(b) the
suspension from trading or failure of the Common Stock to be listed on a Principal Market for a period of three (3) consecutive
Business Days;


 


(c) the
delisting of the Common Stock from the Principal Market, and the Common Stock is not immediately thereafter trading on the New
York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTC
Bulletin Board or the OTCQB marketplace or OTCQX marketplace of the OTC Markets Group;


 


 (d) the
failure for any reason by the Transfer Agent to issue Purchase Shares to the Buyer within five (5) Business Days after the applicable
Purchase Date that the Buyer is entitled to receive;


 


(e) the
Company’s breach of any representation or warranty (as of the dates made), covenant or other term or condition under any
Transaction Document if such breach could reasonably be expected to have a Material Adverse Effect and except, in the case of
a breach of a covenant which is reasonably curable, only if such breach continues uncured for a period of at least five (5) Business
Days;


 


(f) if
any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;


 


(g) if
the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a voluntary case, (B) consents to the entry
of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially
all of its property, (D) makes a general assignment for the benefit of its creditors or (E) becomes insolvent;


 




    	 	 -16-	 



    	 



    

 


(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company
in an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of its property, or (C) orders
the liquidation of the Company or any Subsidiary; or


 


(i) if
at any time after the Commencement Date, the Exchange Cap is reached unless and until stockholder approval is obtained pursuant
to Section 1(h) hereof. The Exchange Cap shall be deemed to be reached at such time if, upon submission of a Purchase Notice or
VWAP Purchase Notice under this Agreement, the issuance of such shares of Common Stock would exceed that number of shares of Common
Stock which the Company may issue under this Agreement without breaching the Company’s obligations under the rules or regulations
of the Principal Market.


 


In
addition to any other rights and remedies under applicable law and this Agreement, including the Buyer termination rights under
Section 11(k) hereof, so long as an Event of Default has occurred and is continuing, or if any event which, after notice and/or
lapse of time, would become an Event of Default, has occurred and is continuing, or so long as the Closing Sale Price is below
the Floor Price, the Company may not require and the Buyer shall not be obligated or permitted to purchase any shares of Common
Stock under this Agreement. If pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case
or any Person commences a proceeding against the Company, a Custodian is appointed for the Company or for all or substantially
all of its property, or the Company makes a general assignment for the benefit of its creditors, (any of which would be an Event
of Default as described in Sections 9(f), 9(g) and 9(h) hereof) this Agreement shall automatically terminate without any
liability or payment to the Company without further action or notice by any Person. No such termination of this Agreement under
Section 11(k)(i) shall affect the Company’s or the Buyer’s obligations under this Agreement with respect to pending
purchases and the Company and the Buyer shall complete their respective obligations with respect to any pending purchases under
this Agreement.


 


10. CERTAIN
DEFINED TERMS. 


 


For
purposes of this Agreement, the following terms shall have the following meanings:


 


(a) “1933
Act” means the Securities Act of 1933, as amended.


 


(b) “Available
Amount” means initially Ten Million Dollars ($10,000,000) in the aggregate which amount shall be reduced by the Purchase
Amount each time the Buyer purchases shares of Common Stock pursuant to Section 1 hereof.


 


 (c) “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.


 


(d) “Business
Day” means any day on which the Principal Market is open for trading during normal trading hours (i.e., 9:30 a.m. to
4:00 p.m. Eastern Time), including any day on which the Principal Market is open for trading for a period of time less than the
customary time.


 


(e) “Closing
Sale Price” means the last closing trade price for the Common Stock on the Principal Market as reported by the Principal
Market.


 


 




    	 	 -17-	 



    	 



    

 


(f) “Confidential
Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment),
which is designated as “Confidential,” “Proprietary” or some similar designation. Information communicated
orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information
within ten (10) Business Days after the initial disclosure. Confidential Information may also include information disclosed to
a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly
known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes
publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action
or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the
disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is
obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality;
(v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential
Information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required
by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice
of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.


 


(g) “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


(h) “Maturity
Date” means the date that is thirty (30) months from the Commencement Date.


 


(i) “Person”
means an individual or entity including any limited liability company, a partnership, a joint venture, a corporation, a trust,
an unincorporated organization and a government or any department or agency thereof.


 


(j) “Principal
Market” means the Nasdaq Capital Market; provided however, that in the event the Company’s Common Stock is ever
listed or traded on the New York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market, the Nasdaq Global Market, Nasdaq
Capital Market, the OTC Bulletin Board or either of the OTCQB marketplace or the OTCQX marketplace of the OTC Markets Group, then
the “Principal Market” shall mean such other market or exchange on which the Company’s Common Stock is then
listed or traded.


 


(k) “Purchase
Amount” means, with respect to any particular purchase made hereunder, the portion of the Available Amount to be purchased
by the Buyer pursuant to Section 1 hereof as set forth in a valid Purchase Notice or VWAP Purchase Notice which the Company delivers
to the Buyer.


 


(l) “Purchase
Date” means with respect to any Regular Purchase made hereunder, the Business Day of receipt by the Buyer of a valid
Purchase Notice that the Buyer is to buy Purchase Shares pursuant to Section 1(b) hereof.


 


 (m)
 “Purchase Notice” shall mean an irrevocable written notice from the Company to the Buyer directing the
Buyer to buy Purchase Shares pursuant to Section 1(b) hereof as specified by the Company therein at the applicable Purchase Price
on the Purchase Date.


 




    	 	 -18-	 



    	 



    

 


(n)
“Purchase Price” means the lesser of (i) the lowest Sale Price of the Common Stock on the Purchase Date or
(ii) the arithmetic average of the three (3) lowest Closing Sale Prices for the Common Stock during the ten (10) consecutive Business
Days ending on the Business Day immediately preceding such Purchase Date (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).


 


(o) “Sale
Price” means any trade price for the shares of Common Stock on the Principal Market during normal trading hours, as
reported by the Principal Market.


 


(p) “SEC”
means the United States Securities and Exchange Commission.


 


(q) “Transfer
Agent” means the transfer agent of the Company as set forth in Section 11(f) hereof or such other person who is then
serving as the transfer agent for the Company in respect of the Common Stock.


 


(r) “VWAP
Minimum Price Threshold” means, with respect to any particular VWAP Purchase Notice, the Sale Price on the VWAP Purchase
Date equal to the greater of (i) 80% of the Closing Sale Price on the Business Day immediately preceding the VWAP Purchase Date
or (ii) such higher price as set forth by the Company in the VWAP Purchase Notice.


 


(s) “VWAP
Purchase Amount” means, with respect to any particular VWAP Purchase Notice, the portion of the Available Amount to
be purchased by the Buyer pursuant to Section 1(c) hereof as set forth in a valid VWAP Purchase Notice which requires the Buyer
to buy the VWAP Purchase Share Percentage of the aggregate shares traded on the Principal Market during normal trading hours on
the VWAP Purchase Date up to the VWAP Purchase Share Volume Maximum, subject to the VWAP Minimum Price Threshold.


 


(t) “VWAP
Purchase Date” means, with respect to any VWAP Purchase made hereunder, the Business Day following the receipt by the
Buyer of a valid VWAP Purchase Notice that the Buyer is to buy Purchase Shares pursuant to Section 1(c) hereof.


 


(u) “VWAP
Purchase Notice” shall mean an irrevocable written notice from the Company to the Buyer directing the Buyer to buy Purchase
Shares on the VWAP Purchase Date pursuant to Section 1(c) hereof as specified by the Company therein at the applicable VWAP Purchase
Price with the applicable VWAP Purchase Share Percentage specified therein.


 


(v) “VWAP
Purchase Share Percentage” means, with respect to any particular VWAP Purchase Notice pursuant to Section 1(c) hereof,
the percentage set forth in the VWAP Purchase Notice which the Buyer will be required to buy as a specified percentage of the
aggregate shares traded on the Principal Market during normal trading hours up to the VWAP Purchase Share Volume Maximum on the
VWAP Purchase Date subject to Section 1(c) hereof but in no event shall this percentage exceed thirty percent (30%) of such VWAP
Purchase Date’s share trading volume of the Common Stock on the Principal Market during normal trading hours.


 


(w)
“VWAP Purchase Price” means the lesser of (i) the Closing Sale Price on the VWAP Purchase Date; or (ii) ninety-seven
percent (97%) of volume weighted average price for the Common Stock traded on the Principal Market during normal trading hours
on (A) the VWAP Purchase Date if the aggregate shares traded on the Principal Market on the VWAP Purchase Date have not exceeded
the VWAP Purchase Share Volume Maximum, or (B) the portion of the VWAP Purchase Date until such time as the sooner to occur of
(1) the time at which the aggregate shares traded on the Principal Market has exceeded the VWAP Purchase Share Volume Maximum,
or (2) the time at which the sale price of Common Stock falls below the VWAP Minimum Price Threshold (to be appropriately adjusted
for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).


 




    	 	 -19-	 



    	 



    

 


(x)
“VWAP Purchase Share Estimate” means the number of shares of Common Stock that the Company has in its sole
discretion irrevocably instructed its Transfer Agent to issue to the Buyer via the Depository Trust Company (“DTC”)
Fast Automated Securities Transfer Program in connection with a VWAP Purchase Notice pursuant to Section 1(c) hereof and issued
to the Buyer’s or its designee’s balance account with DTC through its Deposit Withdrawal At Custodian (DWAC) system
on the VWAP Purchase Date (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split,
reverse stock split or other similar transaction).


 


(y)
“VWAP Purchase Share Volume Maximum” means a number of shares of Common Stock traded on the Principal Market
during normal trading hours on the VWAP Purchase Date equal to: (i) the VWAP Purchase Share Estimate, divided by (ii) the VWAP
Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split,
reverse stock split or other similar transaction).


 


11. MISCELLANEOUS.


 


(a) Governing
Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the other Transaction Documents shall be governed by the internal laws of the State of Illinois, without
giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the State of Illinois. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in the City of Chicago, for the adjudication of
any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith, or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.


 


(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a
facsimile or pdf (or other electronic reproduction) signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, not a facsimile or PDF (or other electronic
reproduction) signature.


 




    	 	 -20-	 



    	 



    

 


(c) Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement.


 


(d) Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.


 


(e) Entire
Agreement. This Agreement and the Registration Rights Agreement supersede all other prior oral or written agreements between
the Buyer, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and
this Agreement, the other Transaction Documents and the instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither
the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. The Company
acknowledges and agrees that is has not relied on, in any manner whatsoever, any representations or statements, written or oral,
other than as expressly set forth in this Agreement.


 


(f) Notices.
Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); (iii)
upon receipt, when sent by electronic message (provided the recipient responds to the message and confirmation of both electronic
messages are kept on file by the sending party); or (iv) one (1) Business Day after timely deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:


 


If
to the Company:


 


Ritter
Pharmaceuticals, Inc.


1880
Century Park East, #1000


Los
Angeles, CA 90067


	 	Telephone:
    	310-203-1000
	 	Facsimile:
    	310-919-1600
	 	Attention:
    	Michael
    D. Step
	 	Email:	mike@ritterpharm.com





 


With
a copy (which shall not constitute notice) to:


 


Reed
Smith LLP


1901
Avenue of the Stars, Suite 700


Los
Angeles, CA 90067


	 	Telephone:
    	310-734-5232
	 	Facsimile:
    	310-734-5299
	 	Attention:
    	Michael
    Sanders, Esq.
	 	Email:	msanders@reedsmith.com





 




    	 	 -21-	 



    	 



    

 


If
to the Buyer:


 


Aspire
Capital Fund, LLC


155
North Wacker Drive, Suite 1600


Chicago,
IL 60606


	 	Telephone:	312-658-0400
	 	Facsimile:
    	312-658-4005
	 	Attention:
    	Steven
    G. Martin
	 	Email:
    	smartin@aspirecapital.com


 


With
a copy to (which shall not constitute delivery to the Buyer):


 


Morrison
& Foerster LLP


2000
Pennsylvania Avenue, NW, Suite 6000


Washington,
DC 20006


	 	Telephone:
    	202-778-1611
	 	Facsimile:
    	202-887-0763
	 	Attention:
    	Martin
    P. Dunn, Esq.
	 	Email:
    	mdunn@mofo.com


 


If
to the Transfer Agent:


 


Corporate
Stock Transfer, Inc.


3200
Cherry Creek South Drive, Suite 430


Denver,
CO 80209


	 	Telephone:
    	303-282-4800
	 	Facsimile:
    	303-282-5800
	 	Attention:
    	H.
    Daniel Bell
	 	Email:
    	dbell@corporatestock.com


  


or
at such other address and/or facsimile number and/or to the attention of such other person as the recipient party has specified
by written notice given to each other party one (1) Business Day prior to the effectiveness of such change. Written confirmation
of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically generated
by the sender’s facsimile machine containing the time, date, and recipient facsimile number, (C) electronically generated
by the sender’s electronic mail containing the time, date and recipient email address or (D) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of receipt in accordance with clause (i), (ii), (iii) or (iv) above,
respectively.


 


(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors
and assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent
of the Buyer, including by merger or consolidation. The Buyer may not assign its rights or obligations under this Agreement.


 




    	 	 -22-	 



    	 



    

 


(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.


 


(i) Publicity.
The Buyer shall have the right to approve before issuance any press release, SEC filing or any other public disclosure made by
or on behalf of the Company whatsoever with respect to, in any manner, the Buyer, its purchases hereunder or any aspect of this
Agreement or the transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval
of the Buyer, to make any press release or other public disclosure (including any filings with the SEC) with respect to such transactions
as is required by applicable law and regulations so long as the Company and its counsel consult with the Buyer in connection with
any such press release or other public disclosure at least two (2) Business Days prior to its release. The Buyer must be provided
with a copy thereof at least one (1) Business Day prior to any release or use by the Company thereof. 


 


(j) Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.


 


(k) Termination.
This Agreement may be terminated only as follows:


 


(i) By
the Buyer any time an Event of Default exists without any liability or payment to the Company. However, if pursuant to or within
the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against the Company,
a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general assignment
for the benefit of its creditors, (any of which would be an Event of Default as described in Sections 9(f), 9(g) and 9(h) hereof)
this Agreement shall automatically terminate without any liability or payment to the Company without further action or notice
by any Person. No such termination of this Agreement under this Section 11(k)(i) shall affect the Company’s or the Buyer’s
obligations under this Agreement with respect to pending purchases and the Company and the Buyer shall complete their respective
obligations with respect to any pending purchases under this Agreement.


 


(ii) In
the event that the Commencement shall not have occurred the Company shall have the right to terminate this Agreement for any reason
or for no reason without any liability whatsoever of either party to the other party under this Agreement except as set forth
in Section 11(k)(viii) hereof.


 


(iii) In
the event that the Commencement shall not have occurred on or before May 1, 2016, due to the failure to satisfy any of the conditions
set forth in Sections 6 and 7 above with respect to the Commencement, either party shall have the option to terminate this Agreement
at the close of business on such date or thereafter without liability of either party to any other party; provided, however, that
the right to terminate this Agreement under this Section 11(k)(iii) shall not be available to either party if such failure to
satisfy any of the conditions set forth in Sections 6 and 7 is the result of a breach of this Agreement by such party or the failure
of any representation or warranty of such party included in this Agreement to be true and correct in all material respects.


 




    	 	 -23-	 



    	 



    

 


(iv)
At any time after the Commencement Date, the Company shall have the right to terminate this Agreement for any reason or for no
reason by delivering notice (a “Company Termination Notice”) to the Buyer electing to terminate this Agreement
without any liability whatsoever of either party to the other party under this Agreement except as set forth in Section 11(k)(viii)
hereof. The Company Termination Notice shall not be effective until one (1) Business Day after it has been received by the Buyer.


 


(v) This
Agreement shall automatically terminate on the date that the Company sells and the Buyer purchases the full Available Amount as
provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any
other party under this Agreement except as set forth in Section 11(k)(viii) hereof.


 


(vi) If
by the Maturity Date for any reason or for no reason the full Available Amount under this Agreement has not been purchased as
provided for in Section 1 of this Agreement, this Agreement shall automatically terminate on the Maturity Date, without any action
or notice on the part of any party and without any liability whatsoever of any party to any other party under this Agreement except
as set forth in Section 11(k)(viii) hereof.


 


(vii) Except
as set forth in Sections 11(k)(i) (in respect of an Event of Default under Sections 9(f), 9(g) and 9(h)), 11(k)(iv), 11(k)(v)
and 11(k)(vi), any termination of this Agreement pursuant to this Section 11(k) shall be effected by written notice from the Company
to the Buyer, or the Buyer to the Company, as the case may be, setting forth the basis for the termination hereof.


 


(viii) The
representations and warranties of the Company and the Buyer contained in Sections 2, 3 and 5 hereof, the indemnification provisions
set forth in Section 8 hereof and the agreements and covenants set forth in Sections 4(e), 4(g) and 11, shall survive the
Commencement and any termination of this Agreement. No termination of this Agreement shall affect the Company’s or the Buyer’s
rights or obligations (A) under the Registration Rights Agreement, which shall survive any such termination in accordance with
its terms, or (B) under this Agreement with respect to pending purchases and the Company and the Buyer shall complete their respective
obligations with respect to any pending purchases under this Agreement.


 


(l) No
Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Buyer that it has not engaged
any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Buyer represents
and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection with
the transactions contemplated hereby. Each party shall be responsible for the payment of any fees or commissions, if any, of any
financial advisor, placement agent, broker or finder engaged by such party relating to or arising out of the transactions contemplated
hereby. Each party shall pay, and hold the other party harmless against, any liability, loss or expense (including, without limitation,
attorneys’ fees and out of pocket expenses) arising in connection with any such claim.


 


(m) No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.


 


 (n) Failure
or Indulgence Not Waiver. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege.


 


*
* * * *


 




    	 	 -24-	 



    	 



    

 


IN
WITNESS WHEREOF, the Buyer and the Company have caused this Common Stock Purchase Agreement to be duly executed as of the
date first written above.


 


	 	THE
    COMPANY:
	 	 
	 	RITTER
    PHARMACEUTICALS, INC.
	 	 	 
	 	By:	/s/
     Michael D. Step 
	 	Name:	 Michael
    D. Step
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	BUYER:
	 	 
	 	ASPIRE
    CAPITAL FUND, LLC
	 	 BY:
    ASPIRE CAPITAL PARTNERS, LLC
	 	 BY:
    SGM HOLDINGS CORP.
	 	 	 
	 	By:	/s/
    Steven G. Martin 
	 	Name:	Steven
    G. Martin
	 	Title:	President


 




    	 	 -25-	 



    	 



    

 


EXECUTION
COPY 


 


SCHEDULES


 


	Schedule
    3(a)	Subsidiaries
	Schedule
    3(c)	Capitalization
	Schedule
    3(e)	Conflicts
	Schedule
    3(f)	1934
    Act Filings
	Schedule
    3(g)	Material
    Changes
	Schedule
    3(h)	Litigation
	Schedule
    3(j)	Intellectual
    Property
	Schedule
    3(l)	Title
	Schedule
    3(p)	Transactions
    with Affiliates
	 	 
	EXHIBITS
	 	 
	Exhibit
    A	Form
    of Officer’s Certificate
	Exhibit
    B-1	Form
    of Company Resolutions for Signing Purchase Agreement
	Exhibit
    B-2	Form
    of Company Resolutions Approving Registration Statement
	Exhibit
    C	Form
    of Secretary’s Certificate
	Exhibit
    D	Form
    of Letter to Transfer Agent


 




    	 



    	 	 	 



    

 


DISCLOSURE
SCHEDULES


 


In
connection with that certain Common Stock Purchase Agreement dated as of December 18, 2015 (the “Agreement”), between
Aspire Capital Fund, LLC, an Illinois limited liability company (“Buyer”), and Ritter Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), the Company hereby delivers to Buyer these Disclosure Schedules to the Company’s
representations and warranties given in the Agreement. The section numbers in the Disclosure Schedules correspond to the section
numbers in the Agreement; provided, however, that any information disclosed herein under any section number shall be deemed to
be disclosed and incorporated in any other section of the Agreement where such disclosure is clearly referenced. Disclosure of
any information or document herein is not a statement or admission that it is material. Capitalized terms used but not defined
herein shall have the same meanings given them in the Agreement.


 


Schedule
3(a) – Subsidiaries


 


None.


 


Schedule
3(c) - Capitalization


 


The
Company has three equity incentive plans; namely the 2008 Stock Plan (the “2008 Plan”), the 2009 Stock Plan (the “2009
Plan”) and the 2015 Equity Incentive Plan (the “2015 Plan”) and options outstanding thereunder. Each of the
2008 Plan, the 2009 Plan and the 2015 Plan has been filed with Securities and Exchange Commission as exhibits to the Company’s
Registration Statement on Form S-1, No. 333-202924. The 2008 Plan provides for the grant of stock options and restricted stock
awards. The 2009 Plan provides for the grant of stock options, restricted stock awards and stock purchase rights. The 2015 Plan
provides for the grant of options, restricted stock, stock appreciation rights, performance based awards, dividend equivalents,
deferred stock, stock payments and restricted stock units.


 


The
Company is party to an Amended and Restated Investors’ Rights Agreement, dated as of November 17, 2010, as amended to date
(copies of such agreement and amendments were filed with the Securities and Exchange Commission as exhibits to the Company’s
Registration Statement on Form S-1, No. 333-202924).


 


The
Company has outstanding warrants covering an aggregate of 418,321 shares of common stock, which warrants have a weighted average
exercise price of $9.30 per share.


 


See
Section 3(c) of the Agreement for further capitalization disclosure.


 


Schedule
3(e) - Conflicts


 


Under
the Underwriting Agreement (the “Underwriting Agreement”) entered into between the Company and Aegis Capital Corp.
(“Aegis”) and filed as an exhibit to the above referenced Registration Statement, the Company may not, without the
prior written consent of Aegis, for a period of 12 months after the date of the Underwriting Agreement, directly or indirectly
in any “at-the-market” or continuous equity transaction, offer to sell, sell, contract to sell, grant any option to
sell or otherwise dispose of shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable
for shares of capital stock of the Company. Additionally, Aegis has an irrevocable right of first refusal (the “Right of
First Refusal”), for a period of twelve (12) months after the effective date of the registration statement referred to above,
to act as sole book-runner and/or sole placement agent, at Aegis’s sole and exclusive direction, for each and every future
public or private equity or debt offering, including all equity linked financings (each, a “Subject Transaction”),
during such twelve (12) month period, of the Company, or any successor to or subsidiary of the Company, on terms and conditions
customary to Aegis for such Subject Transactions. The Company may not retain, engage or solicit any additional investment banker,
book-runner, financial advisor, underwriter and/or placement agent in a Subject Transaction during the twelve (12) month period
referred to above without the express written consent of Aegis. The Company is in the process of obtaining the written consent
of Aegis to the transactions contemplated by the Agreement and a waiver of Aegis’s rights of first refusal.


 




    	 



    	 	 	 



    

 


Schedule
3(f) - 1934 Act Filings


 


None.


 


Schedule
3(g) - Material Changes


 


None.


 


Schedule
3(h) - Litigation


 


None.


 


Schedule
3(j) - Intellectual Property


 


None.


 


Schedule
3(l) - Title


 


None.


 


Schedule
3(p) - Transactions with Affiliates


 


The
Company is party to offer letters with certain of its executives and has, with each of Michael D. Step, Ira Ritter and Andrew
Ritter, an Executive Severance & Change in Control Agreement. The foregoing have been filed with the Securities and Exchange
Commission as exhibits to the Company’s Registration Statement on Form S-1, No. 333-202924.


 




    	 



    	 	 	 



    

 


EXHIBIT
A


 


FORM
OF OFFICER’S CERTIFICATE


 


This
Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 7(e) of that certain Common
Stock Purchase Agreement dated as of December 18, 2015 (the “Common Stock Purchase Agreement”), by and between
RITTER PHARMACEUTICALS, INC., a Delaware corporation (the “Company”), and ASPIRE CAPITAL FUND, LLC,
an Illinois limited liability company (the “Buyer”). Terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Common Stock Purchase Agreement.


 


The
undersigned, ______________, ________________ of the Company, hereby certifies as follows:


 


1. I
am the _________________ of the Company and make the statements contained in this Certificate in such capacity and not personally;


 


2. The
representations and warranties of the Company are true and correct in all material respects (except to the extent that any of
such representations and warranties is already qualified as to materiality in Section 3 of the Common Stock Purchase Agreement,
in which case, such representations and warranties are true and correct without further qualification) as of the date when made
and as of the Commencement Date as though made at that time (except for representations and warranties that speak as of a specific
date);


 


3. The
Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.


 


 4.
 The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy
Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as
they become due.


 


IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ___________.


 


	 	 
	 	 
	 	 



 


The
undersigned as Secretary of RITTER PHARMACEUTICALS, INC., a Delaware corporation, hereby certifies that ___________________
is the duly elected, appointed, qualified and acting ______________ of RITTER PHARMACEUTICALS, INC. and that the signature
appearing above is his genuine signature.


 


	 	 
	 	 
	 	_______________________________________,
Secretary



 




    	 



    	 	 	 



    

 


EXHIBIT
B-1


 


FORM
OF COMPANY RESOLUTIONS


FOR
SIGNING PURCHASE AGREEMENT


 


WHEREAS,
management has reviewed with the Board of Directors the background, terms and conditions of the transactions subject to the Common
Stock Purchase Agreement (the “Purchase Agreement”) by and between the Company and Aspire Capital Fund, LLC
(“Aspire”), including all materials terms and conditions of the transactions subject thereto, providing for
the purchase by Aspire of up to Ten Million Dollars ($10,000,000) of the Company’s common stock, par value $0.001 per share
(the “Common Stock”); and


 


WHEREAS,
after careful consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the
Board of Directors, the Board of Directors has determined that it is advisable and in the best interests of the Company to engage
in the transactions contemplated by the Purchase Agreement, including, but not limited to, the issuance of 188,864 shares of Common
Stock to Aspire as a commitment fee (the “Commitment Shares”) and the sale of shares of Common Stock to Aspire
up to the available amount under the Purchase Agreement (the “Purchase Shares,” and together with the Commitment
Shares, the “Aspire Shares”).


 


Transaction
Documents


 


NOW,
THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase Agreement are hereby approved and the Chief Executive
Officer, the President and the Vice President Finance (the “Authorized Officers”) are severally authorized
to execute and deliver the Purchase Agreement, and any other agreements or documents contemplated thereby including, without limitation,
a registration rights agreement (the “Registration Rights Agreement”) providing for the registration of the
shares of the Company’s Common Stock issuable in respect of the Purchase Agreement on behalf of Aspire, with such amendments,
changes, additions and deletions as the Authorized Officers may deem to be appropriate and approve on behalf of, the Company,
such approval to be conclusively evidenced by the signature of an Authorized Officer thereon; and


 


FURTHER
RESOLVED, that the terms and provisions of the Registration Rights Agreement by and among the Company and Aspire are hereby approved
and the Authorized Officers are authorized to execute and deliver the Registration Rights Agreement (pursuant to the terms of
the Purchase Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may deem appropriate
and approve on behalf of, the Company, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon;
and


 


FURTHER
RESOLVED, that the terms and provisions of the Form of Transfer Agent Instructions (the “Instructions”) are
hereby approved and the Authorized Officers are authorized to execute and deliver the Instructions (pursuant to the terms of the
Purchase Agreement), with such amendments, changes, additions and deletions as the Authorized Officers may deem appropriate and
approve on behalf of, the Company, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon;
and


 




    	 



    	 	 	 



    

 


Execution
of Purchase Agreement


 


FURTHER
RESOLVED, that the Company be and it hereby is authorized to execute the Purchase Agreement providing for the purchase of common
stock of the Company having an aggregate value of up to $10,000,000; and


 


Issuance
of Common Stock


 


FURTHER
RESOLVED, that the Company is hereby authorized to issue the Commitment Shares to Aspire as Commitment Shares and that
upon issuance of the Commitment Shares pursuant to the Purchase Agreement, the Commitment Shares shall be duly authorized, validly
issued, fully paid and non-assessable; and


 


FURTHER
RESOLVED, that the Company is hereby authorized to issue shares of Common Stock upon the purchase of Purchase Shares up to the
available amount under the Purchase Agreement in accordance with the terms of the Purchase Agreement and that, upon issuance of
the Purchase Shares pursuant to the Purchase Agreement, the Purchase Shares will be duly authorized, validly issued, fully paid
and non-assessable; and


 


FURTHER
RESOLVED, that the Company hereby initially reserves 1,577,699 shares of Common Stock for issuance as Purchase Shares under the
Purchase Agreement; and


 


Listing
of Shares on the Nasdaq Capital Market


 


FURTHER
RESOLVED, that the officers of the Company with the assistance of counsel be, and each of them hereby is, authorized and directed
to take all necessary steps and do all other things necessary and appropriate to effect the listing of the Aspire Shares on the
Nasdaq Capital Market; and


 


Approval
of Actions


 


FURTHER
RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed
to proceed on behalf of the Company and to take all such steps as deemed necessary or appropriate, with the advice and assistance
of counsel, to cause the Company to consummate the agreements referred to herein and to perform its obligations under such agreements;


 


FURTHER
RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in
the name of the Company, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed
and delivered all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters
and undertakings and to incur and pay all such fees and expenses as in their judgment shall be necessary, proper or desirable
to carry into effect the purpose and intent of any and all of the foregoing resolutions, and that all actions heretofore taken
by any officer or director of the Company in connection with the transactions contemplated by the agreements described herein
are hereby approved, ratified and confirmed in all respects; and


 


FURTHER
RESOLVED, that any and all actions heretofore or hereinafter taken on behalf of the Company by any of said persons or entities
within the terms of the foregoing resolutions are hereby approved, ratified and confirmed in all respects as the acts and deeds
of the Company.


 




    	 



    	 	 	 



    

 


EXHIBIT
B-2


 


 FORM
OF COMPANY RESOLUTIONS APPROVING REGISTRATION STATEMENT


 


WHEREAS,
there has been presented to the Board of Directors of the Company a Common Stock Purchase Agreement (the “Purchase Agreement”)
by and among the Company and Aspire Capital Fund, LLC (“Aspire”), providing for the purchase by Aspire of up
to Ten Million Dollars ($10,000,000) of the Company’s common stock, par value $0.001 (the “Common Stock”);
and


 


WHEREAS,
after careful consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the
Board of Directors, the Board of Directors has approved the Purchase Agreement and the transactions contemplated thereby and the
Company has executed and delivered the Purchase Agreement to Aspire; and


 


WHEREAS,
in connection with the transactions contemplated pursuant to the Purchase Agreement, the Company has agreed to file a registration
statement with the Securities and Exchange Commission (the “Commission”) registering the Commitment Shares
(as defined in the Purchase Agreement) and the Purchase Shares (as defined in the Purchase Agreement) and to list the Commitment
Shares and Purchase Shares on the Nasdaq Capital Market;


 


WHEREAS,
the management of the Company has prepared an initial draft of a Registration Statement on Form S-1 (the “Registration
Statement”) in order to register the sale of the Purchase Shares and the Commitment Shares (collectively, the “Securities”)
by Aspire; and


 


WHEREAS,
the Board of Directors has determined to approve the Registration Statement and to authorize the appropriate officers of the Company
to take all such actions as they may deem appropriate to effect the offering.


 


NOW,
THEREFORE, BE IT RESOLVED, that the officers and directors of the Company be, and each of them hereby is, authorized and directed,
with the assistance of counsel and accountants for the Company, to prepare, execute and file with the Commission the Registration
Statement, which Registration Statement shall be filed substantially in the form presented to the Board of Directors, with such
changes therein as the Chief Executive Officer, the President or the Vice President Finance of the Company shall deem desirable
and in the best interest of the Company and its stockholders (such officer’s execution thereof including such changes shall
be deemed to evidence conclusively such determination); and


 


FURTHER
RESOLVED, that the officers of the Company be, and each of them hereby is, authorized and directed, with the assistance of counsel
and accountants for the Company, to prepare, execute and file with the Commission all amendments, including post-effective amendments,
and supplements to the Registration Statement, and all certificates, exhibits, schedules, documents and other instruments relating
to the Registration Statement, as such officers shall deem necessary or appropriate (such officer’s execution and filing
thereof shall be deemed to evidence conclusively such determination); and


 




    	 



    	 	 	 



    

 


FURTHER
RESOLVED, that the execution of the Registration Statement and of any amendments and supplements thereto by the officers of the
Company be, and the same hereby is, specifically authorized either personally or by the Chief Executive Officer and Chief Financial
Officer (the “Authorized Officers”) as such officer’s true and lawful attorneys-in-fact and agents; and


 


FURTHER
RESOLVED, that the Authorized Officers are hereby designated as “Agent for Service” of the Company in connection with
the Registration Statement and the filing thereof with the Commission, and the Authorized Officers hereby are authorized to receive
communications and notices from the Commission with respect to the Registration Statement; and


 


FURTHER
RESOLVED, that the officers of the Company be, and each of them hereby is, authorized and directed to pay all fees, costs and
expenses that may be incurred by the Company in connection with the Registration Statement; and


 


FURTHER
RESOLVED, that it is desirable and in the best interest of the Company that the Securities be qualified or registered for sale
in various states; that the officers of the Company be, and each of them hereby is, authorized to determine the states in which
appropriate action shall be taken to qualify or register for sale all or such part of the Securities as they may deem advisable;
that said officers be, and each of them hereby is, authorized to perform on behalf of the Company any and all such acts as they
may deem necessary or advisable in order to comply with the applicable laws of any such states, and in connection therewith to
execute and file all requisite papers and documents, including, but not limited to, applications, reports, surety bonds, irrevocable
consents, appointments of attorneys for service of process and resolutions; and the execution by such officers of any such paper
or document or the doing by them of any act in connection with the foregoing matters shall conclusively establish their authority
therefor from the Company and the approval and ratification by the Company of the papers and documents so executed and the actions
so taken; and


 


FURTHER
RESOLVED, that if, in any state where the securities to be registered or qualified for sale to the public, or where the Company
is to be registered in connection with the public offering of the Securities, a prescribed form of resolution or resolutions is
required to be adopted by the Board of Directors, each such resolution shall be deemed to have been and hereby is adopted, and
the Secretary is hereby authorized to certify the adoption of all such resolutions as though such resolutions were now presented
to and adopted by the Board of Directors; and


 


FURTHER
RESOLVED, that the officers of the Company with the assistance of counsel be, and each of them hereby is, authorized and directed
to take all necessary steps and do all other things necessary and appropriate to effect the listing of the Securities on the Nasdaq
Capital Market; and


 


Approval
of Actions


 


FURTHER
RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed
to proceed on behalf of the Company and to take all such steps as are deemed necessary or appropriate, with the advice and assistance
of counsel, to cause the Company to take all such action referred to herein and to perform its obligations incident to the registration,
listing and sale of the Securities; and


 


FURTHER
RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in
the name of the Company, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed
and delivered all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters
and undertakings and to incur and pay all such fees and expenses as in their judgment shall be necessary, proper or desirable
to carry into effect the purpose and intent of any and all of the foregoing resolutions, and that all actions heretofore taken
by any officer or director of the Company in connection with the transactions contemplated by the agreements described herein
are hereby approved, ratified and confirmed in all respects.


 




    	 



    	 	 	 



    

 


EXHIBIT
C


 


 FORM
OF SECRETARY’S CERTIFICATE


 


This
Secretary’s Certificate (the “Certificate”) is being delivered pursuant to Section 7(k) of that certain
Common Stock Purchase Agreement dated as of December 18, 2015 (the “Common Stock Purchase Agreement”), by and
between RITTER PHARMACEUTICALS, INC., a Delaware corporation (the “Company”) and ASPIRE CAPITAL FUND,
LLC, an Illinois limited liability company (the “Buyer”), pursuant to which the Company may sell to the
Buyer up to Ten Million Dollars ($10,000,000) of the Company’s Common Stock, par value $0.001 (the “Common Stock”).
Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Common Stock Purchase Agreement.


 


The
undersigned, _______________, Secretary of the Company, in his capacity as such, hereby certifies as follows:


 


1. I
am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.


 


2. Attached
hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s Amended and Restated Bylaws (“Bylaws”)
and Restated Certificate of Incorporation (“Certificate of Incorporation”), in each case, as amended through
the date hereof, and no action has been taken by the Company, its directors, officers or stockholders, in contemplation of the
filing of any further amendment relating to or affecting the Bylaws or Certificate of Incorporation.


 


3. Attached
hereto as Exhibit C are true, correct and complete copies of the Signing Resolutions duly adopted by the Board of Directors of
the Company [by unanimous written consent]. Such resolutions have not been amended, modified or rescinded and remain in full force
and effect and such resolutions are the only resolutions adopted by the Company’s Board of Directors, or any committee thereof,
or the stockholders of the Company relating to or affecting (i) the entering into and performance of the Common Stock Purchase
Agreement, or the issuance, offering and sale of the Purchase Shares and the Commitment Shares and (ii) and the performance of
the Company of its obligation under the Transaction Documents as contemplated therein.


 


4. As
of the date hereof, the authorized and issued capital stock of the Company is as set forth on Exhibit D hereto.


 


IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ____________.


 


	 	 
	 	 
	 	_______________________________________,
Secretary



 


The
undersigned as Chief Executive Officer of RITTER PHARMACEUTICALS, INC., a Delaware corporation, hereby certifies that ____________________
is the duly elected, appointed, qualified and acting Secretary of RITTER PHARMACEUTICALS, INC., and that the signature
appearing above is his genuine signature.


 





	 	 
	 	 
	 	 



 




    	 



    	 	 	 



    

 


EXHIBIT
D


 


FORM
OF LETTER TO THE TRANSFER AGENT FOR THE ISSUANCE OF THE COMMITMENT SHARES AND INITIAL PURCHASE SHARES AT SIGNING OF THE PURCHASE
AGREEMENT


 


[COMPANY
LETTERHEAD]


 


December
18, 2015


 


[Transfer
Agent]


[Address]


[Address]


Attention:


 


Re:
Issuance of Common Stock to Aspire Capital Fund, LLC


 


Ladies
and Gentlemen:


 


On
behalf of RITTER PHARMACEUTICALS, INC., (the “Company”), you are hereby instructed to issue as
soon as possible 688,864 shares of our common stock in the name of ASPIRE CAPITAL FUND, LLC. The share certificate
should be dated December 18, 2015. I have included a true and correct copy of adopted resolutions of the Board of Directors of
the Company approving the issuance of these shares. The shares should be issued subject to the following restrictive legend:


 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2)
AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS.


 




    	 



    	 	 	 



    

 


The
share certificate should be sent as soon as possible via overnight mail to the following address:


 


Aspire
Capital Fund, LLC


155
North Wacker Drive, Suite 1600


Chicago,
IL 60606


Attention:
Steven G. Martin


 


Thank
you very much for your help. Please call __________________, at ____________ if you have any questions or need anything further.


 


	RITTER
    PHARMACEUTICALS, INC.	 
	 	 	 
	BY:	 	 
	Name:	 	 
	Title: